Field Actions Science

Reports
Special Issue 4 (2012)
Fighting Poverty, between market and gift

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Alain Supiot

Poverty through the Prism of the Law

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Alain Supiot, Poverty through the Prism of the Law, Field Actions Science Reports [Online], Special Issue
4|2012, Online since 10 June 2012, Connection on 10 October 2012. URL: http://factsreports.revues.org/1602
Publisher: Institut Veolia Environnement
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Published 31 May 2012

C- Poverty through the Prism of the Law

Alain Supiot
(Institut dEtudes Avances de Nantes)
Above all things, good policy is to be used,
that the treasures and monies in a State
be not gathered into few hands.
For otherwise, a State may have a great stock,
and yet starve; and money is like muck,
not good except it be spread
Francis Bacon
The Essays or Counsels,
Civil and Moral [3rd ed. 1625]
Abstract. The normative dimension of the notion of poverty, and its embedding in the long history of cultures,
is largely overlooked in contemporary political discourse. Legal analysis shows, however, that two opposing
conceptions of poverty continue to do battle: one sees poverty as a social scourge, whose effectsbut not its
causescan be counteracted; the other sees it as the manifestation of a social injustice which must be tackled
at the root.
Keywords. Poverty, solidarity, globalization, social law, religion.

In the political vocabulary of globalization, poverty has

become an impoverished notion, one that does more to
obscure than to illuminate the question of social justice. In
fact, it probably owes part of its remarkable success to its
weakness as a concept. It has been stripped of its history and
geography, and carefully washed clean of the soil of injustice
in which its roots are steeped.
Stripped of its geography, reduced to an indicator expressed
in dollars, poverty is seen as a statistical datum, capable of
being apprehended in the same way wherever it occurs on the
surface of the earth, like epidemics or natural disasters.
Defining extreme poverty as living on less than a dollar a day
as the United Nations does in its Millennium Development
Goalsonly blinds us to all those aspects of the standard of
living, of the quality of life, that are not amenable to monetary
evaluation, because they derive meaning from their social and
cultural context. It ignores the normative tendency, whichas
the leading historians of statistics and practice have shownis
inherent to socio-economic categories. In his seminal work,
Alain Desrosires demonstrated that, unlike the use of quantification in the natural sciences, economic and social statistics
does not measure a pre-existing reality; it constructs a new
reality by treating heterogeneous entities and forces as equivalent. Like constitutions in the legal domain, statistical information is by its very essence normative, and is used to

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construct a public space. When this statistical representation

of society is developed in a national setting, it can be questioned by parliamentary or trade union representatives; its
normativity remains under democratic control. But when this
numerical representation of social reality seeks to transcend
the other forms of representation and lay claim to worldwide
validity, those checks and balances melt away. There is then a
risk of enclosing oneselfand enclosing whole peoplesinside
the self-referential loops of a technocratic discourse that overwrites the realities of human life instead of representing them.
Even local research capacities are caught up in just such a
self-referential loop. They are mobilized not to design antipoverty action plans, but to implement them. Instead of asking indigenous researchers to formulate the questions raised
by the reality of their compatriots living conditions, we ask
them to fill in questionnaires designed in advance by international organizations. The situation is not all that different in
France. Frances poor (unlike the rich) are certainly the objects of unrelenting analysis by the social sciences, just as they
are the objects of legal mechanisms to combat poverty, but it
is extremely unusual for them to be treated as subjects and
invited to share their experience of poverty.
Deprived of its local signification, the notion of poverty
is also robbed of its history and of the contradictory meanings
that it has always conveyed. For centuries, even in the West,

A. Supiot: Poverty through the Prism of the Law

many saw it as an ideal: the straight and narrow path between
misery and wealth, on which man could enjoy the basic minimum of resources necessary to advance freely, without being
weighed down by his material possessions. Generations of
monks followed this path by taking the vow of poverty, and
by a strange irony of history, it is this prohibition on wealth
that led the Franciscans to invent the first legal instruments of
capitalism: foremost among them, the trust. The Franciscans,
who did not themselves view poverty as a third wayas a
golden mean between the extremes of opulence or destitutionsaw the fate of the poor as inextricably bound up with
that of the rich. But in so doing they adopted two diametrically opposed interpretations, which continue to permeate
our ways of thinking, and which shed light on differences of
national legal culture with regard to poverty.
For some, poverty is the manifestation of a transcendent
justice, the markand the punishmentof vice, while wealth
is a sign of virtue and talent. Present in the Old Testament
tradition, which promises wealth and wellbeing on Earth to
Gods chosen, this interpretation resurfaces in Protestantism:
God, wrote Calvin, gives abundantly to his own people
the means to aid others, but the wicked are always so ravenous that their want leads them to have recourse to fraud and
rapine. According to Max Webers famous thesis, the spirit
of capitalism is heir to this tradition, in which wealth is evidence of divine election and poverty tends to be assimilated
with sin. Over the last thirty years, numerous policy initiatives have given that idea renewed legal vitality. One of the
key causes of unemployment is alleged to be laziness, encouraged by over-generous welfare handouts, which should
therefore be reduced or made subject to the unconditional
acceptance of insecurity, deskilling and flexibility.
The other, opposing, tradition sees poverty, not wealth, as
the sign of divine election. Behind its modern faade, its religious roots also go back a long way. This is the tradition that
sings the Internationale, calling the prisoners of starvation
to revolt: The earth shall rise on new foundations: We have
been naught, we shall be all! The wretched of the capitalist
earth are destined to become the chosen ones of the communist paradise. But this inversion of worldly values was already present in Bossuet, when he observed in his sermon
On the Eminent Dignity of the Poor, that the admirable
reversal, by which the last will be first and the first will be
last (Matt. 20:16) has already begun in this life: Since the
poor are the last in the world they are the first in the Church.
The rich imagine that everything in the world belongs to
them, and thus they trample the poor underfoot. Yet their only
reason for being in the Church is in order to serve the poor.
According to Saint Augustine, the burden of the poor is not
having what they need, while the burden of the rich is having
more than they need. Bossuet deduced that alms were not an
act of grace that the rich bestow upon the poor, but a service
that the poor render to the rich, by allowing them to unload
part of the burden of their wealth and thereby earn a legitimate place among the community of the faithful.
The idea of solidarity is already at work in this way of
thinking which, contrary to economic liberalism, does not see
poverty as part of the natural order of things, to which the law
should conform: For we ought not to desire, wrote Saint

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Augustine, that there be wretched persons in order that we

may be able to perform works of mercy. You give bread to a
hungry person, but it would be better were no one hungry,
and you could give it to no one () Because you rendered
service, you seem greater, as it were, than he to whom service
was rendered. Wish him an equal, so that you may both be
under the One to whom no service can be rendered. Coming
from a quite different direction, that of political realism, Sir
Francis Bacon arrived at the same conclusion. His experience
of government in 17th-century England led him to believe that
money is like muck, not good except it be spread, so much
so that to accrue wealth, instead of redistributing it, was to
plant the seeds of trouble and sedition.
The opposition between these two interpretations of poverty continues to be seen in the mirror of contemporary law.
They have merely been stripped of their religious references.
On one side, the view that sees poverty as a scourge of nature: one can try, certainly, to mitigate its effects, but, like
droughts or earthquakes, it is in the order of things, part of
mans lot, which it would be vain and even dangerous to try
and change. On the other, the view that sees poverty as a social injustice, whose causes can and should be counteracted.
In the aftermath of the war, the social injustice interpretation initially came to predominate, and with it, the idea of
solidarity between rich and poor. This was expressed as early
as 1944 in the Declaration of Philadelphia, which stated that
Poverty anywhere constitutes a danger to prosperity everywhere. This Declaration inaugurated that brief period during
which people strove to build an international legal order that
would make social justice and the eradication of poverty the
goal of all governments, their economic and financial structures being mere instruments in the fulfillment of that goal.
This was the stance taken by the Havana Charter, signed in
1948, the same year as the proclamation of economic and
social rights in the Universal Declaration of Human Rights.
The Charterwhich was never ratifiedprovided for the
creation of an International Trade Organization (ITO), one of
its missions being to realize the goals of full employment
and higher living standards set out in the United Nations
Charter. Its statutes directed it to fight against both surpluses
and deficits in the balance of payments, to favor economic
cooperation instead of competition between states, to promote compliance with international labor standards, to control movements of capital, to help stabilize basic commodity
prices In short, its agenda was almost the exact opposite of
that assigned to the World Trade Organization (WTO) when
it was created in 1994. By condemning public surpluses as
well as deficits, it made the balanced distribution of wealth
the cornerstone of the fight against poverty, thereby extending
Francis Bacons political maxim into the field of international
relations. And by providing for legal instruments dedicated to
maintaining the stability of basic commodity prices, it set out
to create the conditions of economic security for all. From
this legal perspective, poverty is seen not as an individual
status, generating an entitlement to assistance, but as the consequence of a systemic economic imbalance.
The failure of this international social project did not
prevent the profusion, in domestic law, of systems of solidarity that embodied economic and social rights, and allowed

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A. Supiot: Poverty through the Prism of the Law

unprecedented advances against poverty. But already it heralded the overturn of the hierarchy that placed human ends
above material and financial means, and a return to a naturalistic conception of the economic order and distribution of
wealth. In the 1970s, with the neoliberal revolution, the idea
once again took hold that poverty stems not from human injustice, but from an immanent order whose laws must be
obeyed. For many American neoconservatives, the belief in
this order has preserved its religiousprotestant or Old
Testamentbasis. At the international level, however, it lays
claim to the authority of science. Friedrich Hayek, one of the
founding fathers of ultra-liberalism, explains that it is ignorance of the rules that underpin the market economy that
makes its results seem irrational and immoral. Therefore, he
claims, their demand for a just distribution in which organized power is to be used to allocate to each what he deserves,
is thus strictly an atavism, based on primordial emotions.
All institutions founded on the notion of solidarity derive
from this atavistic conception of distributive justice and
can only lead to the ruin of the spontaneous order of the
market, based on true prices and the quest for personal
gain. They must therefore be dismantled. Of course one can
help the poor, but such help is a moral duty rather than a legal
obligation. So it is that the rolling back of economic and
social rights today goes hand-in-hand with the promise of
advances in ethics and corporate social responsibility.
They are two sides of the same coin, which the European
Council embossed in 2005 with a pithy formula: the
European Union must [] make its regulatory environment
more business-friendly, while business must in turn develop
its sense of social responsibility.
At the national level, the return of this interpretation of poverty as a social scourge places the poor back in the gray area
between social law and criminal law. On the one hand there is
a proliferation of public charity mechanisms, designed to mitigate the effects of poverty. Most recently in France, the
Revenu de solidarit active, which accords the poor a right to
support, along the same lines as that provided for disabled
persons and outpatients. On the other hand, the systems of
repression have been reinforced, to curb the public insecurity
engendered by the rise in economic and social insecurity. The
fight is no longer against poverty. It is against the wicked
[whose] want leads them to have recourse to fraud and rapine, that Calvin stigmatized so long ago.
At the international level, the ultra-liberal revolution has
resulted in the adoption of trade rules in every respect contrary to those proposed by the Havana Charter in 1948. They
aim to sweep away all regulatory barriers to the circulation
of goods and capital and to true market prices, and seek to
engage every country in the world in a competition based on
their respective comparative advantages. But this international commercial law has been adopted without rescinding
the economic and social rights proclaimed in the UDHR, and
without abolishing the institutions tasked with their implementation, foremost among them the International Labor
Organization. The upshot is a schizophrenic international legal order, with its trade hemisphere inciting countries not to
ratify, or not to apply, the standards that its social hemisphere
proclaims as necessary and universal. And so we have the

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World Bank on the one hand supporting anti-poverty plans

that strive to guarantee a universal income greater than one
dollar a day, while on the other hand inciting states to abolish
the rules that stipulate a minimum salary of more than 20 dollars a month. This last recommendation can be found, along
with others of the same ilk, in its report Doing Business in
2005. Designed for use in benchmarking national laws, indicators of this type are aimed at international investorshelping them find the regulatory environments most conducive
to making large profitsand at states, engaging them in a
competition to increase these profits across the board. These
indicators are symptomatic of the more general belief that
national laws are legislative products competing in a global
market of standards, and that we should therefore facilitate
law shopping by economic operators. The aim is to progressively eliminate the legal systems that are least well
adapted to meeting the expectations of the financial markets.
But behind the pseudo-scientific trappings of this normative Darwinism it is not hard to discern its religious underpinnings, its belief in an immanent order that destines some
for prosperity and others for perdition; an order that must not
be traversed by positive laws, rather, it must be facilitated by
making the quest for personal enrichment the Grundnorm of
the legal order. In fact, insists Hayek, we generally are
doing most good by pursuing gainan idea that was still
seen as scandalous when it was first put forward by Bernard
Mandeville in 1714, but which has since become something
of a clich: private virtue leads to public virtue. This political
philosophy, which makes other people the means to personal
enrichment, is no more compatible with the principle of human dignity than law shopping is compatible with the rule of
law. It is therefore doubtful whether it is sustainable in the
long term, and its critique must not serve as a pretext for
evading the problems raised by the erosion of the national
solidarity systems put in place after the Second World War.
These systems contributed hugely to a historically unprecedented reduction in poverty in the West. But, as Robert Reich
so lucidly pointed out as early as 1992, their strength was
undermined by the opening of borders to trade, allowing the
richest members of society to evade the taxes and contributions through which national solidarity is funded. These external destabilizing factors were compounded by an internal
factor. The enrolment of men and women into anonymous
national support networks, guaranteeing everyone a degree of
economic security, freed them from the burden of family and
local solidarity, thus helping to sustain the illusion of the selfsufficient individual. The statehaving become a universal
debtorengenders a nation of creditors who no longer recognize any mutual duty of solidarity, and social demand eventually spirals out of the governments control.
We cannot hope to fight poverty effectively by allocating
individual rightstotally disconnected from solidarity networksto the poor. However laudable the intentions behind
the case law of the European Court of Human Rights, for
example, which assimilates social security entitlements to
property rights, the worry is that this legal palliative will infect social law with the belief that all debts can somehow be
metamorphosed into payment orders, regardless of the nature of the debtor. This confusion between entitlement and

Field Actions Science Reports

A. Supiot: Poverty through the Prism of the Law

propertywhose destructive power was demonstrated by the
financial meltdown of 2008overlooks the fact that the value
of a debt is always conditional on the debtor meeting his
obligations. The same applies to economic and social rights,
which are debts whose value depends on the ability to enforce the corresponding obligations, namely the requirement
to pay taxes and social security contributions. There is no
right to solidarity without a duty of solidarity, and everyone
covered by a solidarity-based system is at once a creditor
and a debtor of the system. From this viewpoint, it is not
poverty that creates the right to assistance, but membership
of a solidarity network in which everyone can alternately be
a debtor and a creditor, according to their needs and resources. It is this that distinguishes modern social law from charitable institutions and makes it an instrument for the equality
of dignity of all people. This arrangement is threatened every time we give in to the temptation to return to charity, by
reducing the scope of its beneficiaries to the poor. But it is
also jeopardized when we permit the rule of law to give way
to law shopping, allowing economic operators to relocate to
the fiscal and regulatory environment of their choice, and
thus avoid funding the solidarity systems from which they
benefit in the countries where they do business.
Spurning the wise counsels of Francis Bacon, the financialization of the economy today leads us to pile money up rather
than spread it around to fertilize human activity. The general
downward pressure on costs, above all on labor costs, favors
a dizzying accumulation of financial profits, which, no longer
finding an outlet in wealth creation, feed a stock-market
casino frenzy in which even basic foodstuffs become the
objects of speculative betting. At the same time, it leads to a
disconnect between pay and productivity, the pauperization
of states (engaged in a Dutch auction over social and tax contributions), an overall reduction in the scope of solidarity, and
the over-exploitation of natural resources. The answer to
these difficulties does not lie in the myth of a global society
made up of self-sufficient individuals freed from all bonds of
solidarity. Nor does it lie in the self-isolation of national solidarity systems: they are the backbone of our societies and
must therefore evolve with them. The only way to deal with
the destabilization of these systems is by harnessing the social state to the other circles of solidarity that are being traced
out, in practice, within and beyond the national context.

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